Case 1: Pink Group Responses
September 14th, 2009 at 12:41Case Study: Week 1
Part 1: Which of the materials used by Professor Dube are subject to copyright? Why or why not in each case?
Subject to copyright:
- Any original writing by Professor Dube would be subject to copyright as long as it was captued in a fixed medium.
Not subject to copyright:
- Factual data about local weather patterns, because facts by themselves do not represent original or creative ideas and cannot be copyrighted.
- NASA satellite images of clouds are in the public domain because they are works of the United States Government. US Government works are not subject to copyright. Sometimes NASA and other government organizations note that some of the materials they publish or distribute may be protected by copyright, but this is only applies to third-party content mixed in with NASA-generated content.
Possibly subject to copyright:
- A lengthy account of local weather patterns written by the local bishop in 1905 could still be subject to US copyright if it was unpublished. While pre-1923 works are in the public domain if they have been published (and would enter the public domain after 95 years from the date of publication), unpublished works are under federal copyright for at least the life of the author plus 70 years. So if the bishop’s account of local weather patterns was unpublished it could still be subject to federal copyright, depending on how long the bishop lived.
Part 2: What could Professor Dube do about the refusal to allow her to assign her own article?
The professor should refer back to her contract with the publisher to see what rights she has given to the publisher. While most publishers require authors to grant them exclusive distribution rights this can vary. Another important point to make here is that just because an organization, such as a publisher, asserts itself as an exclusive distribution chanel does not mean this assertion is correct. In the United States Professor Dube could assert fair use, make photocopies of her article, and assign it to her class. Section 107 of the US Copyright Act explicitly identifies photocopying for classroom use as permissible and fair. If she makes a fair use of the article, she can do so without the publisher’s permission, and can do so even if the publisher says she can’t.
Questions:
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What is copyright?
Copyright is a “bundle of rights” governing who may use a creative work and how. It is a limited monopoly granted by governments to authors and creators “for limited times” that grants creators a certain amount of control, but not total control, over the use of their works. Copyright comes with five major rights: The right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. In addition, copyright holders are able to transfer or license these rights to others.
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What activities does copyright prohibit?
Copyright limits certain uses of a creative work, but because there are exceptions to those limitations, it’s hard to say whether copyright absolutely prohibits some kinds of activities. The exclusive rights of the copyright holder are the right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. As a result, it would appear that copyright prohibits everyone from doing those things with a creative work unless they are the copyright holder. However, it is possible to do things such as make and distribute copies, or create derivative works, in a manner that would be considered fair use or fair dealing and hence not prohibited. If a use is not fair, or otherwise protected by an exception to the exclusive rights of the copyright holder, then it is prohibited. Some kinds of uses that are probably not fair include making and selling copies for profit that compete with the original in the marketplace; making a derivative work that is not considered a parody or transformative in some way; performing the work publicly in a commercial setting without permission.
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Does copyright cover ideas or only expressions?
Copyright only covers expressions.
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What requirements must resource meet for copyright to apply?
A work must be an original literary or artistic production. In most countries, it must involve some small measure of creativity, but in other countries, the investment of “hard work” absent creativity (the phone directory example) suffices. A work must be “fixed” in some tangible form, such as on paper, on celluloid, on canvas, made of copper, or even on a hard drive. This can get tricky, but, as an example, in the case of choreography, the choreographers’ notes are considered the choreography for the purposes of copyright.
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What about the rights of authors? Can someone sell the right to be known as the author? What right does the author have over how others who get copyright over her work can change it?
Authors can sell some of all of the economic rights of their copyright, but not right to be known as the author. In places where there are moral rights, such as the UK and France, the author maintains the moral rights even if all other rights have been sold or transferred. Moral rights include “the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” As such, the author could control the derivatives of the work if she could prove that it would negatively impact her reputation.
6. What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?
Public domain describes works where copyright does not apply. They may be used by anyone, anywhere, anytime without permission, license or royalty payment. Works enter the public domain when copyright term ends or the copyright has been abandoned. The copyright term lasts for a minimum of 50 years beyond the death of the copyright holder, depending on the country. In the US and EU, this has been extended to life plus 70 years. Works can enter directly into the public domain if an author declares no rights reserved. Additionally, original works by the US government, some other federal governments, and some state governments are not copyrighted and – save for some statuatory exceptions – enter automatically into the public domain.
September 16th, 2009 at 2:48 pm
The strong assertion for Prof. Dube’s Fair Use of her published article in the Journal is well stated. I think you are right about that, because even if she were to photocopy it with Fair Use in mind, that action would still be regulated by an American version of what we have here in the UK: the Copyright Licensing Authority (CLA).
So one way or the other, the publisher would still see income from the photocopying. It’s not clear how much as the CLA would pool the income and disburse it equally.
September 16th, 2009 at 4:52 pm
Very authoritative answer, Pink group. I’ll just add some comparative points.
Re: NASA images and US government data being in the public domain. NASA images are used worldwide in consequence. In the UK (and I think Commonwealth countries) data generated by government departments can generally be used, but exists under Crown Copyright rather than in the public domain.
Nice point about fair use exemption existing even if the publisher claims the contrary. However in the UK at least (where it’s called ‘fair dealing’) the Prof would not be able to copy entire articles.
The JISC guidelines for higher education say
“Fair dealing is not a right, but a defence against an infringement action. If sued for infringement, you must be prepared to demonstrate not only that the copying was done for one of the approved purposes, but also that it was indeed ‘fair’ to the copyright owner.” ( JISC/TLTP Copyright Guidelines p13)
In the UK there isn’t a general exemption for educational use. The exemption for private study would not extend to distributing copies and fair dealing allows only extracts amounting to 1% of a work in a given quarter.
September 16th, 2009 at 7:16 pm
Assessment of Case 1: Pink Group by Yellow Group:
Scenario Part 1:
Overall: 29 /30
Accuracy: 9 /10
Clarity: 10 /10
Utility: 10 /10
Comments: I like the way that you organized the answers to the scenarios. It was very easy to follow. I did not know about the distinction for works created before 1924 (your answer said 1923 but the cutoff for the public domain in the U.S. is 1924 starting in 2009) but not published until after then.
Scenario Part 2
Overall: 26 /30
Accuracy: 8/10
Clarity: 10/10
Utility: 8 /10
Comments: Fair use would only apply if Professor Dube were at a U.S. university. The question did not specify in which country Prof. Dube lives. Other countries have similar exceptions and limitations on copyright under different names, e.g. fair practice in Ghana, fair dealing in South Africa. In South Africa, articles published in course packs count as compilations, which require royalties. So if Prof. Dube is in South Africa, he could not legally publish it in a coursepack. If he does not publish it as a coursepack but hands out the loan article to his class, or puts it on learning management system behind user authentication, this compilation restriction would not apply he and could use it under fair dealing.
Question 1
Overall: 29 /30
Accuracy: 10 /10
Clarity: 10 /10
Utility: 9 /10
Comments: You explained the some basic features of copyright but left out the purpose of copyright law (e.g. Progress Clause in U.S. Constitution or The Statute of Anne if discussing UK or US copyright law).
Question 2
Overall: 30 /30
Accuracy: 10/10
Clarity: 10 /10
Utility: 10 /10
Comments: You provided a concise answer to a complicated question.
Question 3
Overall: 15 /30
Accuracy: 9 /10
Clarity: 3/10
Utility: 3 /10
Comments: It would have helped to provide more information, such as why copyright covers expression and not ideas, the fact that if two people develop something independent of each other and come up with the same expression they both have copyright in their works, etc.
Question 4
Overall: 24/30
Accuracy: 9 /10
Clarity: 7 /10
Utility: 8 /10
Comments: You covered the two main “tests” for copyright: creative expression and in a tangible. You didn’t list everything that’s covered by copyright, which can differ by country. I’m curious as to why you highlighted choreography. Would your classification/limitation of copyright to literary and artistic works include computer programs?
Question 5
Overall: 23 /30
Accuracy: 9 /10
Clarity: 7/10
Utility: 7 /10
Comments: I’m less familar with moral rights since we don’t have them in the U.S. except for fine art (see Visual Artists Rights Act of 1960), so I can’t comment much on the accuracy. You may be right, but I think you could have used an example or two to clarify your point. You provided a quotation with no citation.
Question 6
Overall: 26 /30
Accuracy: 9 /10
Clarity: 8 /10
Utility: 9 /10
Comments: The phrase ” the copyright has been abandoned” is unclear. If a copyright work is abandoned, it becomes an orphan work. Even if a copyright holder is unavailble or does police his/her work, the is technically still in copyright. If is only if a copyright holder waives his or her copyright (such as through the CC0 waiver) does a copyrighted work with a term that has not expired become part of the public domain. I think the first sentence is unclear. You concisely explain later that the public domain includes works that have expired copyright terms or rights that have been waived. You didn’t include things which cannot be copyrighted (e.g. facts, ideas) in your definition of the public domain. This is picky, but your use of the term federal and state governments is confusing in an international context. (You’re talking about U.S. states but, internationally, state is a another word for country or nation.)
September 17th, 2009 at 9:27 pm
In response to the yellow group feedback, In the U.S. the clear cutoff for public domain is still 1923. The Copyright Act of 1976 prevented works from 1924 from entering the public domain if they were renewed. The American Library Association (ALA) has a nice digitla copyright slider for U.S. law http://www.librarycopyright.net/digitalslider/.
September 22nd, 2009 at 5:42 pm
Hi all,
We’ll be providing more in-depth feedback to the groups later on this week. Since I am the only course organizer located in the US, I’ll be giving the Pink Group feedback. I would like to commend you all on the great work that’s going on here! I am impressed both with the quality of analysis, and on the peer feedback.
I just want to make a very quick point to resolve what appears to be some confusion about the 1923 date as the “beginning” of the public domain in the U.S. kludewig is correct that 1923 is a clear cutoff for published works.
For works that were never published or registered, it is a bit more complicated. For unpublished works where the date of death for the author is unknown, then the term of copyright is 120 years. See 17 U.S.C. § 302(e). (Note that the ALA slider does not have a marker for “Death Date of Author is Unknown” under the “Unpublished Works” section).
Therefore the Pink Group’s determination that if the bishop’s work was unpublished, it could still be subject to copyright, is correct.
October 1st, 2009 at 1:31 pm
Hi all,
Official assessment of the Pink Group’s answers for week 1: 9/10.
You did a very good job, very thorough generally. I would like to point out under Scenario Part 2, that the publishing contract may limit fair use. So it is correct in general to say that the professor could use the works (assuming the use is fair) even when the publishers deny permission, EXCEPT when the contract expressly limits certain uses. In such cases, unfortunately, the contract wins.
Official assessment of the Yellow group’s assessment of Pink for week 1: 5/5.
I would like to note that we are asking each group to apply the scenario to their own jurisdiction, so the assumption that fair use would apply was appropriate. I thought the comparison to how it would be different under SA law was enlightening.
I have not seen an assessment from the Orange Group, so for now their grade is unfortunately a 0/5!
Thanks to you all for your hard work on this course so far. Well done.
-Lila